The Valley Virginian. [volume] (Staunton, Va.) 1865-1895, 1887-04-14
rhe Courts Decision in the Allen


LII the Supreme Court of appeals, at
Richmond. on Thurs lay LASS. Judge Lacy
delivered the following opinion which
was concurred III BY the either members OF
the Court:
Aues, and others rs. 7T,e CONFERENCE.-The Opinion
0fJudge Lacy
This is a writ o. error to a Judgment Of the
Circuit Court Off, :ich mond city rendered ON the
Goth day OF November 1856
The action was substituted in August. 1881, by
the Comnohwea II h against the plaintiff in err
ror, late Auditor of Puhitc Accounts OF the State
and bis sutetts upon HE official bond, for al =
legged default o. The said plaintiff lii error rs
udiLor ia pay ing John n, hamilton, treasurer
OF Augusta tut, by his w',rrant on the Treas
ury of the stat }. S'.3s99 81. commissions on $i6
500 .t3 The of he taxes assessed against
the Chesapeake and ONO Railway Company,
when by lstwt sum paid should have been
Si24 90. and in paying the said Hamilton 81, I'D
o. com iission taxes assessed against the
Shenandoah Valley Railroad Company, when,
it Is claimed, the commissions should have
been S2i7 l4-that Is the said auditor paid TO the
said treasurer of Augusta county - per cent
commissions, whereas the commissions allow
ed By law are ~ per centum.
There was ademurrer to the evidence OF the
plaintiff by the defendant, and verdict ana
Judgment for the plaintiff tor the sums claimed
In the declaration, whereupon the case was
brought here by writ of error.
The first question material to be cons i'ere req
here is whether the commission paid to the
county treasurer was in excess of lawful au-
thority,
The act of Assembly provides for the assess
ment and taxing of railroad companies, and
they are required to pay the required tax INTO
failure on the part of the company to so pay the
said taxes into the Treasury o the State the
same Is to be collected by any treasurer 20
| or copy thereof. And the said treasurer is
| authorized to distrain ana sell, aud is required
| to pay the same into the Treasury of the State
within three months. Acts l3Sl-S2, section ~,
| page 5O6.
law and placed the said taxes in the hands of
| the said treasurer OF Augusta county. and took
his receipts as treasurer OF Augusta county.
The said treasurer collected the whole amount
of the taxes and paid them into the State Treas
ury. and was paid 80 per centum commission by
| The compensation fixed by law for county
| treasures for collecting the State revenue is
" per centnm for al sums over Sloooo. "A Acds rs
| 1878 20, page S2s.
been able to collect any taxes coming in their
hands the law provides thai wnere the lists are
made out of these, examined by the county
| Court, and approved. that the treasurer shall
receive credit for them and shall not after
1 wards collect them.
| certified copy of these are to be placed by
| the Auditor iii the hands OF any sheriff, SER
geant, constable or collector for collection,and
| his compensation shall not exceed 70 per cent
| UNI. The compensation of such collector snail
not exceed 20 per centum, but the amount Of
/ such compensation is to be agreed on before
| the service is performed. and must be APPROX
| ed by the Governor; and such collector IS re-
| quired before he acts to give bond approved by
/ the Auditor. Acts E7S-79 pages 327, 1913 aud
1923. sections 20, 81 and %.
| The taxes in question here were never re-
| turned or listed as delinquent examined au't
| approved by the County Court and certified, no
/ com pensatiOn was agreed on before hand, APP
| proved by the Governor, and no bond given by
| any collector, aud no such collector ever APP
pointed, and there was therefore, no auth >rity
by law to pay any GO ~ per and een h com
| taxes were delivered by the Auditor to the
| treasurer of Augusta county, who collected
| them and paid them into the Treasury of the
| Stale, and his compensation prescribed by law
| for this service was ~ per centum. and not %
| per ce ntum. 1t follows that the Audiior paid
| the said % per centum without authority OF
4 law.
| The next question to be determined is wheth-
| er the Auditor can be required to refund and
make good to the Commonwealth this amount
/ SO Illegally paid by him under his official bond.
1t Is contended by the Auditor that his error,
| if such IL be, was al error in deiiberatlve iudg-
| ment, and that he is not responsible for errors
| ofjudgment when he was allowed a discretion
tits we'll settled that ministerial and other pub
lie officers, though not employed i'll the ordinary
administration ofjustice. when called upon by
| lawto exercise deiiberative Judgment are no.
responsible Tor errors of judgment IN the ao-
| sence of all corruption or malice. Opinion OF
| Baldwin, j., in Austin vs.. Richardson, dfat,
| When public officer exercises his best judg-
ment in the exercise of judicial functions ne is
not liable to an action for an error ofjudsment.
He is not liable to an action he fails into ef-
| ROE In a where the act tn be done is rot
l
| to which 1t is his duty to exercise judSme ut anu
| discretion. Chief-Justice Fancy oplr ion in
| Kendall vs. Stokes. 3 How, 3ol But in q case
| where he Is authorized by law to exercise a
merely ministerial act within a.stated limit,and
/ no discretion vested Ia him amorg which we
| must place discretion to pay ttain per cent
| to certain officer for certain service. 70 pay
| a certain officer certain salary, what discre-
| tiou has he in the premises except what is self
| assumed? Can he pay less Not without in
| fringing the rights Of the individual. Can he
| pay more ? Not without infringing the rights of
the ComIIoa wealth. There is no margin allow
| ed -no room for the exercise of any Judgment
on mis- part. He must obey Me laU in sucb to
the letter, or he viola ties the iai0
| There are many cases familiar to the profess
| sion where the Auditor is authorized 10 act
cording to his discretion and hest iud sment.
| but this case cannot be brought under any such
| designation. This is O. case where the law fixed,
| and fixing. absolutely limited the duty and the
function of the Auditor, and the money paid
| out by him was in plain violation of the law OF
the land and he must be held liable for the
amount overpaid in excess of lawful authority,
| and the judgment of the Circuit GoarL OF Rich
| mond city must be affirmed.
| c0py-Teste
4 GEORGE X. TAYLO G.. G.,